Questions and Solutions (Day 2) – Thelegaltorts

Federal Court Rules Against Trump Administration On The “Third-Country Asylum” Rule – JONATHAN TURLEY

I will be continuing to blog on the hearing and occasionally tweak highlights.  As noted earlier, I will step away for a speech at the Brookings Institution around 11 am.

9:25 — Sen. Feinstein asked Barrett about severability. This is the first real recognition that two conservative justices have indicated that they would uphold an Act like the ACA even if a provision is found unconstitutional.  There is no reason to believe that Barrett would vote differently from the expected votes of Roberts and Kavanaugh. Ironically, without a ninth vote, the case could tie which would result in the entire Act being struck down.

9:40 — Barrett is again discussing precedent. She put herself in the middle on stare decision that it is not absolute or meaningless.  She noted that reliance interests must be considered.

9:45 — Grassley is up. Primarily a critique of the Dems.

9:55 —  Barrett just said that she would be open to cameras in the courtroom. I have long advocated for the inclusion and some justices have been demonstrably opposed.

9:56 — Barrett strongly indicated that she does not agree with the use of international law as controlling in U.S. cases – a position similar to Scalia.

10:06 — Leahy is making a good point that Barrett should have said clearly that the Supreme Court’s decisions are final on both lower courts and presidents. Barrett said she was referring to Federalist 78 and that Court lacks the ability to force its will. It is the final word but relies on the other branches to enforce. Barrett did a good job in using Brown to show how the national guard was needed to enforce the ruling.

10:09 — Leahy legitimately pushed the question and asked about a president who refused to adhere to an order. Barrett again noted that other presidents have defied the law but the ruling is the final work on the law.

10:11 — Leahy is pushing on whether a president can pardon himself and Barrett refused to answer pursuant to the Ginsburg rule. Leahy said her answers were incompatible. Not sure I know what that is based on. He is pushing her on emoluments clause which again is still in litigation.  She could not and did not answer as Leahy clearly knew would happen.

10:16 — Barrett just nailed the precedent question by noting that Lawrence and Brown overruled cases. The Democrats have cited those cases, correctly, as celebrated moments.

10:24 — Sen. Cornyn is using Ginsburg’s prior article to say that the decision was “breathtaking” in Roe and questioning whether Roe was a good idea.

10:37 — Durbin is up. He had a very successful day yesterday with a rare substantive exchange with Barrett. Durbin had another strong examination. He is pushing Barrett on why she cannot answer questions that are expressly addressed in the Constitution. He asked a question under the 15th Amendment. Again, these have been very effective framing.  Barrett is holding her own. It is another moment of substance — an island in a sea of puffery.

Barrett just landed a haymaker.  Durbin said that her answer “stains originalism:  Barrett responded that it would “strain the canons of (judicial) conduct . . . it would strain Article III” to answer. Durbin was again connected with well-crafted questions but that was a great counterpunch. Barrett has reach . . . as they say in boxing.

10:45 — Durbin is returning the decisions on taking away guns versus taking away votes for ex-felons.  Barrett is again noting that there is a distinction between rights that are individual rights (as in the Second Amendment) and rights going to society like voting. Durbin was very effective in response.  These exchanges are the highlights of the hearing between two able debaters. Durbin shows how substantive questions can yield more benefits than the cheap sensational attacks of his colleagues.

10:50 — I have to run to give my speech at the even at Brookings.  I will be back on around 12.

12:35 — I’m back. Sen. Klobuchar is grilling Barrett on being the “polar opposite” of Ginsburg and says that that is a serious problem.

12:39 — Barrett just pushed back on Klobuchar on the insinuation of her questioning of bias.  I do not blame her. This is a silly line of questions that Barrett legitimately called a suggestion of a type of letter to President Trump.

12:41 — Klobuchar is seriously arguing that Barrett wrote an article before the election as a signaling to Trump. It is an incredibly low-grade attack particularly after the substantive exchange between Durbin and Barrett.

12:45 — Klobuchar just laughed at Barrett for declining to answer under the Ginsburg rule. She then turned to the irrelevant question of whether Barrett or her family have voted by mail.

12:46 — Klobuchar is dripping with sarcasm in what is becoming an openly insulting series of questions. Rather than ask like Hirono is she has committed sexual assault, Klobuchar is asking if she is a political shill.

12:58 — Sen. Sasse just gave a strong argument against the cameras in the courtroom.  Grassley is right on this issue, in my view.  The Framers loved science and new technology.  Cameras would allow all citizens to see these arguments not just people who stand in line for a small number of seats.

1:03 — Sasse just asked Barrett to list the five freedoms of the first amendment.  It is tough question for someone under the glare of television lights after hours of grilling. Barrett got four and then Sasse asked another question on why they are in the same amendment. It is rare to see such odd throws to a nominee by the sponsoring party. Not sure the majority will like the line of questioning but Sasse is very smart and was making a valid and interesting point.  Yet, it puts the nominee in an uncomfortable position since Sasse clearly wanted to lay the foundation for his own point later. I think she was relieved when he went to baseball and attacking the Houston Astros.

1:08 — wow that was a long way around to go from Houston Astros to go to judicial philosophy.

1:15 — Sen. Coons asked a good question about Griswald.  Barrett responded that Griswald is “very very very very unlikely to go anywhere.” Barrett gave another nuanced answer tied to Roe by saying that it is the foundation of a question to get a peek on a Roe decision.

1:29 — Coons is again attacking Barrett on the Texas article. Barrett has not dismissed the hold of precedent but he seems to suggest that the Court should never revisit precedent. It is an incomprehensible position and Barrett hit Coons on cases like Lawrence.  Coons said those were “grievously wrong cases.” He then said she should look at precedent through a “Ginsburg lens” rather than a Scalia lens.”

1:34 — …Coons sounded like he was trying to talk himself into voting on the basis not of qualifications but the expected votes of a nominee. He succeeded. He just announced he would vote against Barrett.

1:37 — Sen. Hawley is asking Barrett if she knows of any anyone who have challenged Griswald in decades.  The question is ill-considered.  That could be used to push Barrett on answering the question on Griswald since it is unlikely to come before her. That was the reason Roberts answered the question. Barrett immediately saw the problem and told him that it could still come up indirectly as the basis for Roe.

1:40 — Hawley is now asking about Section 230 and a new opinion by Thomas in the denial of cert.  Obviously, she will not speak to such a case. He is asking about the dangers of rewriting a statute like this one. Barrett left her answer confined to subverting Congress and what is a classic “countermajoritanian difficulty” answer.

1:54 — Blumenthal is up but the mike has failed. Some will celebrate.

2:46 — Blumenthal is back and asking the same series of questions that Barrett has declined previously answer.  Barrett just said Blumenthal is pushing her to violate the code of judicial ethics. I would be more sympathetic with the questioning (as someone who have criticized the scope of the Ginsburg rule) if the Democrats, including Blumenthal, supporting nominees like Kagan in not answering such questions.

2:50 — Blumenthal is now detailing President Trump’s debt and his tax issues.  He pivoted to emoluments — an area that she again had repeatedly refused to answer. Few would argue that she should given the pending litigation. Yet, Blumenthal is pushing again for an answer.

2:52 — Blumenthal just discussed his lawsuit on emoluments which was just denied on cert yesterday and rejected in the court of appeals. I happen to agree on standing as a long advocate for legislative standing. However, I have always been skeptical of the emoluments lawsuits.

2:54 — Blumenthal is now pushing Barrett on her views of Global Warming. As Hirono would say “what the heck?”

2:57 — Blumenthal objected that he suspects Barrett is a judicial activist just after trying to influence her to vote to protect ACA based on the personal stories and appeal to her judgment on policy grounds. He also just asked her about her view of global warming as if that were relevant to the nomination. The mike thankfully then cut off again.

3:21 — Barrett just revealed that her son Liam became very upset with some of the questioning of his mother.

3:32 — Sen. Hirono is up.  Hirono just said that Barrett would destroy the “fair and balanced” court that we value.

3:36 — Hirono is again trying to get Barrett to say that she will rule based on how she views the better results for individuals under the health care law.  Barrett has said impacts are considered. Hirono however seems to be inviting Barrett to “do the right thing” by these individuals as opposed to what she believes the law or Constitution demands.

3:43 — Hirono just said that Barrett “went out of your way to send a signal” in prior cases.  Nothing could be more insulting to a jurist.

3:51: Hirono is now asking Barrett if she thinks the Administration is protecting voting rights.

3:53: Hirono just said that “the fact that you wouldn’t even bring forth the recusal process says to me that voters may decided there is an appearance of conflict.” What?

4:09 — Sen. Booker is asking whether Barrett thinks that it is wrong to separate a child from a parent to send a message.  Barrett correctly stated that he is trying to get her to enter the public debate over the Administration’s policies. No nominee could ethically engage in such a discussion.

4:27 — Booker just told Barrett the “fix is in”.

4:30 — Barrett just responded to Booker stating that she does not appear to have tried to understand racial injustice and seemed insensitive to it. She noted that she has two Haitian children and obviously both personal and legal commitment to racial justice and equality.

4:49 — Sen. Harris is up. She is again giving a speech unconnected to the nomination.

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